Antwain Townes III v. State

Affirmed and Opinion filed April 2, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00233-CR
NO. 14-18-00234-CR
ANTWAIN TOWNES III, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Cause Nos. 1331227 & 1524616
OPINION
Appellant Antwain Townes III appeals two sentences imposed by the trial
judge on the ground that the presentence investigation report was biased.
Acknowledging he did not object to the presentence report in the trial court,
appellant contends the lack of objection does not preclude our review because his
asserted right to an unbiased presentence report is a “category-two” Marin1 right,
1
Marin v. State, 851 S.W.2d 275, 279-80 (Tex. Crim. App. 1993).
or, alternatively, his trial counsel was ineffective by failing to object. We conclude
the record does not support the violation alleged even assuming preservation, and
we affirm the trial court’s judgments in both cause numbers.
Background
This appeal involves the sentences imposed for two separate offenses. The
first was a Harris County grand jury indictment for felony robbery. Pursuant to a
plea bargain with the State, appellant pleaded guilty to the lesser offense of theft
from a person, and the trial court deferred adjudication and placed appellant on
community supervision for three years. A few months before appellant’s
community supervision expired, the State moved to adjudicate appellant’s guilt.
The State alleged that appellant violated the terms and conditions of his
community supervision by committing another criminal offense, among many
other claimed violations.
In a separate cause, the State indicted appellant for aggravated robbery with
a deadly weapon, and appellant pleaded guilty. Because the parties had not agreed
to a recommended sentence, the trial court deferred entering a finding of guilt for
the aggravated robbery charge and recessed appellant’s sentencing hearing pending
completion of a presentence investigation report.2 The report was prepared by the
Harris County Community Supervision and Corrections Department. As required
by statute in part, the report included the circumstances of the charged offense
(including appellant’s version), a victim impact statement, appellant’s social and
criminal history (including the prior theft offense), and a multi-factor risk
assessment.3 The report also attached several character reference letters supporting
appellant. Overall, the report indicated that appellant scored in the moderate risk
2
See Tex. Code Crim. Proc. art. 42A.252(a).
3
See Tex. Code Crim. Proc. art. 42A.253.
2
range for recidivism, based on a criminal attitude, poor judgment, negative peers,
and a lack of motivation to address primary problems. The report recommended
that appellant be placed in the Young Men About Change (YMAC)—Criminal
Conduct Track, if appellant was to be placed on community supervision.
Before the sentencing hearing began, the judge confirmed that appellant’s
counsel had received a copy of the report. Counsel stated he had no objections to
the report, and the State offered it into evidence.
The trial court adjudicated appellant guilty of the offense of theft from a
person and sentenced appellant to two years’ confinement in state jail. For the
aggravated robbery charge to which appellant pleaded guilty, the court sentenced
appellant to eight years’ confinement in the institutional division of the Texas
Department of Criminal Justice. The trial court ordered the two sentences to run
concurrently.
Appellant timely appealed the judgments in both cases.
Analysis
Appellant presents a single issue for our review, albeit one with multiple
sub-parts. The crux of his complaint is that the presentence report was unfairly
biased because the author used words possessing negative connotations when
discussing appellant but maintained neutrality when discussing the complainant’s
report. According to appellant, just as he is entitled to neutrality from the tribunal,
he is entitled to neutrality from the presentence report because the preparing officer
is the court’s “agent.” Though appellant did not object to the report in the trial
court, he contends no objection was required or, alternatively, his trial counsel was
ineffective by failing to object.
3
Presentence reports are prepared by community supervision and corrections
departments, which serve the district courts and county courts at law handling
criminal cases within a designated judicial district or combination of districts. See
Tex. Code Crim. Proc. arts. 42A.001(4), 42A.252(a); Tex. Gov’t Code §§ 76.002,
76.004. A presentence report is used anytime a sentence is to be determined by a
judge. Stringer v. State, 309 S.W.3d 42, 45 (Tex. Crim. App. 2010). Except in
situations inapplicable here, trial judges “shall direct a supervision officer to
prepare a presentence report for the judge.” Tex. Code Crim. Proc. art.
42A.252(a).4 The report contains general punishment-phase evidence and assists
the court in determining the sentence to assess. Stringer, 309 S.W.3d at 45; see
also Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (presentence
investigation and report may be utilized to assist trial judge in the exercise of
discretion when an issue of the proper punishment is present). The report’s
purpose is to “provide a wide range of information to the trial court without an
adversarial hearing,” Stringer, 309 S.W.3d at 48, and to that end the report’s
contents are prescribed by statute. Tex. Code Crim. Proc. art. 42A.253. For
example, a presentence report must be in writing and include the circumstances of
the charged offense, the defendant’s criminal and social history, a proposed
supervision plan if the court grants community supervision, and any other
information relating to the defendant or the offense as requested by the judge. Id.
A presentence report may not be inspected by the judge nor may its contents
be disclosed unless the defendant pleads guilty or nolo contendere or is convicted
of the offense, or the defendant authorizes in writing the judge to inspect the
report. Id. art. 42A.254. Unless waived, a defendant has the right to read the
4
A “supervision officer” is a person appointed or employed by a community supervision
and corrections department to supervise defendants placed on community supervision. Tex.
Code Crim. Proc. art. 42A.001(4).
4
report at least forty-eight hours before sentencing. Id. art. 42A.255(a). If a
defendant believes the report is biased or contains factual inaccuracies, the
Legislature has provided statutory remedies, including a right to object, the right to
comment on the presentence investigation, and (with the judge’s approval) the
right to “introduce testimony or other information alleging a factual inaccuracy in
the investigation or report.” Id. art. 42A.255(b).5
In the trial court, appellant did not exercise his rights to object or comment
on the presentence report or to introduce testimony. On the contrary, appellant
urged the court to follow the probation officer’s report because he thought the
officer “did an excellent job” and made “the correct recommendation.” Now,
appellant claims he may raise his bias argument for the first time on appeal under
Marin because the right to an unbiased court may be raised for the first time on
appeal,6 and his asserted right to an unbiased presentence report ought to be treated
similarly.
We need not decide whether appellant may complain of an allegedly biased
presentence report for the first time on appeal because we conclude the report does
not reflect impermissible bias or partiality against him. See Brumit v. State, 206
S.W.3d 639, 644-45 (Tex. Crim. App. 2006) (declining to decide whether an
objection was required to preserve error and instead resolving appellant’s issue on
the basis that the record did not reflect partiality of the trial court); see also
Kuzbary v. State, No. 14-17-00146-CR, 2018 WL 3118579, at *7 (Tex. App.—
5
Appellant does not contend the report contains factual inaccuracies. Compare Stancliff
v. State, 852 S.W.2d 639, 641 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d) (to
successfully challenge presentence report based on factual inaccuracies, appellant must
demonstrate that information was materially inaccurate and that judge relied on the inaccurate
information), superseded by statute on other grounds as stated in Whitelaw v. State, 29 S.W.3d
129 (Tex. Crim. App. 2000).
6
Appellant cites Grado v. State, 445 S.W.3d 736, 741-43 (Tex. Crim. App. 2014).
5
Houston [14th Dist.] June 26, 2018, no pet.) (mem. op., not designated for
publication); Luu v. State, 440 S.W.3d 123, 128 (Tex. App.—Houston [14th Dist.]
2013, no pet.).
Appellant argues that the duty of impartiality required of a court is also
“imputed” to “agents” of the court, such as an officer who prepares a presentence
report. The Court of Criminal Appeals has described presentence report authors as
“neutral,”7 but they are not court “agents” in the sense appellant suggests.
Contrary to appellant’s argument, a presentence report is not “from” the court; it is
for the court and prepared by an entity distinct from the court.8
To demonstrate the report’s one-sided nature, appellant relies on certain
basic neutrality principles applicable to judges, such as a criminal defendant’s right
to a neutral and impartial trial judge9 at both the guilt/innocence and punishment
stages of trial;10 and that a judge should not act as an advocate for, or adversary of,
7
See Stringer, 309 S.W.3d at 48 (probation officer who prepares report is neutral).
8
As the presentence report statutes make clear, community supervision and corrections
departments are established by, and operate under the oversight of, a committee or board
comprised of the presiding judges of the courts served by the district. See Hunt Cty. Cmty.
Supervision & Corrs. Dep’t v. Gaston, 451 S.W.3d 410, 413 (Tex. App.—Austin 2014, pet.
denied) (citing Tex. Gov’t Code § 76.004(b)). That oversight includes appointing “a department
director,” who is charged with the department’s day-to-day administration. Id. (citing Tex.
Gov’t Code § 76.004(a), (a-1)). Among other duties, the director employs officers and others to
conduct presentence investigations, supervise and rehabilitate defendants placed on community
supervision, enforce the conditions of community supervision, and staff community corrections
facilities. See Tex. Gov’t Code § 76.004(b). Although these subordinates are “integral to
judicial administration of community supervision regimes,” Hunt Cty., 451 S.W.3d at 413, the
Legislature has prescribed that community supervision and corrections departments are entities
distinct from the courts they serve, albeit still within the Judicial Branch, and that each
subordinate “is an employee of the department and not of the judges or judicial districts.” Tex.
Gov’t Code § 76.004(b).
9
See Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991); Brumit, 206 S.W.3d at 645;
Luu, 440 S.W.3d at 128.
10
Segovia v. State, 543 S.W.3d 497, 503 (Tex. App.—Houston [14th Dist.] 2018, no
pet.); see also State v. Hart, 342 S.W.3d 659, 672 (Tex. App.—Houston [14th Dist.] 2011, pet.
ref’d).
6
any party.11 Appellant urges us to analyze whether a presentence report is biased
by the same standards we would analyze whether a judge is biased. We will
indulge that proposition for argument’s sake here.
Appellant identifies the following “observations” in the presentence report
that he believes are unfairly biased:
 The defendant claimed when he initially entered the laundromat he had
no intention to commit robbery but when he saw “an opportunity” he
decided to commit the offense.
 [The complainant] reported . . . he was approached by [appellant] . . . .
 [The complainant] reported as he was opening the door to his cash
register area [appellant] presented a gun and forced himself in the door
and took a little over $700 from the register . . . .
 [The complainant] reported he had scratches and marks on his arms . . . .
 [Appellant] denied the use of illegal or non-prescribed drugs in his
lifetime.
 [Appellant] claimed he committed this offense in an attempt to help his
mother pay their rent so they would not be evicted from their residence.
He denied being under the influence of alcohol or drugs during his
offense.
 [Appellant] denied being involved in a gang, nor any of his friends.
 [Appellant] associates with antisocial peers who engage in substance
use/criminal activity.
 [Appellant] presented with criminal attitudes, poor judgment, and
negative peers, all of which contributed to his involvement in the
criminal justice system.
(All emphases supplied by appellant).
These statements do not reflect bias against appellant. Were appellant
challenging the tribunal’s conduct—again assuming similar standards apply—
11
Luu, 440 S.W.3d at 128.
7
appellant would be required to show that the challenged comments reflect “a
‘deep-seated favoritism or antagonism that would make fair judgment
impossible.’” Abdygapparova v. State, 243 S.W.3d 191, 198 (Tex. App.—San
Antonio 2007, pet. ref’d) (quoting Liteky v. United State, 510 U.S. 540, 550
(1994)); see also Barfield v. State, 464 S.W.3d 67, 81 (Tex. App.—Houston [14th
Dist.] 2015, pet. ref’d). Appellant argues that “[t]he language and tone of the
report reports [appellant’s] statements with skepticism - while the complainant’s
statements are presented in a neutral tone.” By and large, however, the excerpted
statements describe merely the factual circumstances as related by appellant and
the complainant, respectively. We do not read the report’s identified sections as
reflective of a skeptical or partial attitude against appellant. Even assuming they
are fairly interpreted as such, skepticism toward a defendant does not rise to the
level of impermissible bias. Accord Roark v. Mother Frances Hosp., 862 S.W.2d
643, 647 (Tex. App.—Tyler 1993, writ denied) (“[H]ealthy skepticism is not the
equivalent of hostility, nor is indicative of bias or prejudice.”). The officer’s
statements do not reflect an unfavorable opinion of appellant that is wrongful or
inappropriate, either because it is undeserved, because it rests upon knowledge that
the subject ought not to possess, or because it is excessive in degree. See Liteky,
510 U.S. at 550.
Moreover, reading the cited statements within the report as a whole fortifies
our conclusion. Contrary to appellant’s suggestion, the report did not focus solely
on negative factors, such as appellant’s prior criminal history, association with
casual acquaintances who have criminal records, and “lack of motivation to
address primary problems.” The report also discussed factors in appellant’s favor,
such as his “very strong family support,” residence in a low-crime area with no
drug activity, educational background, and employment history. The report
8
concluded with a recommendation that appellant would benefit from a highly
structured residential program designed to address his criminal attitudes. Overall,
the report provided a balanced approach to appellant’s criminal posture, and it
attached reference letters praising appellant’s character. A presentence report “is
as likely to contain information adverse to the punishment position of the state as
of the defense,”12 and this one did.
For these reasons, regardless whether appellant was required to object to the
report on bias grounds, we conclude the presentence report is not impermissibly
biased against appellant. We overrule appellant’s first issue.
Given our disposition, we need not reach appellant’s ineffective assistance
arguments.
Conclusion
Having overruled appellant’s sole issue on appeal, we affirm the trial court’s
judgments in both cases.
/s/ Kevin Jewell
Justice
Panel consists of Justices Christopher, Jewell, and Hassan.
Publish — Tex. R. App. P. 47.2(b).
12
Stringer, 309 S.W.3d at 48 (internal quotation omitted).
9